Dolese Bros. Co. v. Privett ( 1981 )

IRWIN, Chief Justice:

On hearing the application and complaint filed by the Director of the Motor Division of the Oklahoma Corporation Commission (Commission) against appellant (Dolese), the Commission found that Dolese was a “common carrier” under our Motor Carrier Act (47 O.S.1971, § 161 et seq.) while engaged in hauling crushed rock to its customers and making a separate charge for such hauling. The Commission also found that Dolese was subject to its regulatory authority when engaged in such commercial enterprise and ordered it to cease and desist its operations as a “common carrier”. Dolese appealed.

The issue presented is whether Dolese is a “common carrier” or a “private carrier” while hauling the crushed stone and making a separate charge for such hauling. Dolese argues that when the history¹ of our Motor Carrier Act is considered in connection with the present enactment and the many other ordinary businesses² that would be subject to the regulatory authority of the Commission if Dolese’s crushed rock operations are, it is evident that the legislature did not intend, and did not by statute, confer upon the Commission regulatory authority over Dolese’s crushed rock operations or other similar operations.

The Commission based its determination that Dolese was a common carrier upon the following findings:

(1) Dolese mines and crushes rock at nine separate quarries and it hauls rock from six of such quarries both to itself and to its customers;

(2) Dolese maintains and operates 58 dump trucks for the purpose of hauling rock from those quarries and 15% of its total revenue is derived from its hauling, while 3.43% of its total profit is derived from such operations;

(3) Dolese makes a separate transportation charge for rock delivered to its customers and such charges generally conform to the tariffs approved by the Commission for certificated carriers; and

(4) Dolese is engaged in the business of hauling property in intrastate commerce for compensation and its transportation of the crushed rock is not incidental to or in the furtherance of any of its commercial enterprises.

Dolese argues that the finding in paragraph (4) is erroneous because its hauling of crushed rock in its own trucks is incidental to and in furtherance of its crushed rock business and not in the furtherance of any transportation business. Dolese contends that being incidental and in furtherance of its crushed rock enterprise clearly makes it a “private carrier” under our statute. Dolese argues that the parties’ stipulation supports this conclusion. In addition to the findings set forth in paragraphs (1), (2) and (3) supra, the parties stipulated that Dolese had been in the ready-mix concrete business in Oklahoma City and other locales in Oklahoma for many years and that:

“3. Dolese has hauled its ready-mix concrete to its customers in its ready-mix trucks from the inception of selling ready-mix concrete, but it never was required to maintain or own trucks for hauling aggregate until January of 1972 at which time Dolese acquired a fleet of aggregate trucks and started operating such trucks ...

(a) Dolese has been successful in its operations because it has furnished quality products with a timely delivery. Up until 1972, it was able to do this by using aggregate trucks operated by third parties and available to it for hauling. However, in 1972, the services of third party trucking operations became inadequate. Dolese furnishes aggregate to the State of Oklahoma for its highway jobs and to various building and construction contractors. These heavy construction contractors have costly investments of labor and machinery in their operations and they require delivery of aggregate products on precise schedules. It became impossible for Dolese to meet these deliveries. Therefore, in order for Dolese to successfully stay in the business of furnishing aggregate to its customers, it became necessary in 1972 that it augment the trucking facilities available with its own trucks and during January of that year it acquired a fleet of trucks for this purpose.

(b) In January, 1972, Dolese started hauling a part of the products it produces in its own trucks and during the last fiscal year of operations of Dolese 20.3% of its aggregate hauling was in Dolese trucks and the remaining 79.7% of its products were hauled by third party trucking companies doing business in the area. The 20.3% of its hauling done by its own trucks insured that it always can get its products hauled on schedule and its truck fleet is necessary in this regard.”

47 O.S.1971, § 161 provides:

“(G) The term “common carrier by motor vehicle” means any person which holds itself out to the general public to engage in the transportation by motor vehicle in intrastate or interstate commerce of passengers or property or any class, or classes thereof for compensation, whether over regular or irregular routes.

(H) The term “contract carrier by motor vehicle” means any person which engages in transportation by motor vehicle of passengers or property in interstate or intrastate commerce, for compensation (other than transportation referred to in the preceding paragraph) under continuing contracts with one person or a limited number of persons ...

(I) The term “private carrier of property by motor vehicle” means any person engaged in transportation upon public highways, of persons or property, or both, but not as a common carrier by motor vehicle, or a contract carrier by motor vehicle, and includes any person who transports property by motor vehicle where such transportation is incidental to or in furtherance of any commercial enterprise of such person, other than transportation.” emphasis added.

Dolese’s basic argument is that its operations in hauling the crushed rock and making a separate charge for such hauling is “incidental to or in furtherance of any commercial enterprise of such person, other than transportation.”

The parties cite two other terms in our Motor Carrier Act. Section 161(F) provides:

“The term ‘motor carrier’ when used in this act includes both a common carrier by motor vehicle and a contract carrier by motor vehicle, operating upon any public highway for the transportation of passengers or property for compensation or for hire or for commercial purposes, and not operating exclusively within the limits of an incorporated city or town within this state.”

Section 161(0) defines the term “‘commercial purposes’ as being all undertakings entered into for private gain or compensation, including all industrial pursuits, whether such undertakings involve the handling or dealing in commodities for sale or otherwise.”

Although a carrier who transports “property for compensation or for hire or for commercial purposes” may be deemed a “motor carrier” under § 161(F), the term “motor carrier” as defined in § 161(F) must be considered in connection with the term “private carrier” as defined by § 161(1). This is because the primary object of statutory construction is to ascertain the legislative intent. Midwest City v. Harris, Okl., 561 P.2d 1357 (1977). Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase whenever it occurs, except where a contrary intention plainly appears. 25 O.S.1971, § 2. Stone v. Hodges, Okl., 435 P.2d 165 (1967).

In construing § 161(F) with § 161(1) we find that a carrier may be deemed a private carrier when such carrier transports property for compensation or for hire or for commercial purposes when such transportation is incidental to or in the furtherance of any commercial enterprise of such carrier, other than transportation.

It is conceded that Dolese receives compensation for transporting crushed rock to its customers. However, Dolese may still be deemed a “private carrier” if such transportation is incidental to or in the furtherance of its crushed rock business.

It is evident by the stipulation that third-party trucking operations for Dolese’s crushed rock business became inadequate and it became impossible for it to meet its contractual obligations. In order for Dolese to successfully stay in business of furnishing crushed rock to its customers, it became necessary for it to acquire a fleet of trucks to transport its crushed rock. Although Dolese trucking revenues constitute 15% of its total revenues, the profits from the trucking operations are only 3.43% of its total profits. The fact that Dolese’s transportation charges generally conformed to the tariffs approved by the Commission is only one of the factors to be considered.

In our opinion, the stipulation of the parties conclusively shows that Dolese acquired the fleet of trucks to transport its crushed rock, and such transportation is incidental to and in furtherance of Dolese’s crushed rock enterprise, and not in the furtherance of a transportation enterprise. The determination by the Commission that Dolese is deemed a “common carrier” is erroneous.

Order reversed.

BARNES, V. C. J., and WILLIAMS, HODGES, LAVENDER, SIMMS and OPA-LA, JJ., concur. DOOLIN and HARGRAVE, JJ., dissent.

1 . Both parties rely on Collins-Dietz-Morris Co. v. The State Corporation Commission, 154 Okl. 121, 7 P.2d 123 (1931). We find that case, decided in 1931 under the then-existing provisions of Laws 1929, c. 253, amending Laws of 1923, c. 113, not to be dispositive of the issues raised here under the present act, 47 O.S.1971, § 161 et seq.

2 . Dolese contends that all of the following business enterprises unless they were operating exclusively within the limits of an incorporated city or town, would be subject to the Commission’s regulatory authority if its crushed stone operations are subject to such authority, (a) All mud companies that deliver mud to oil field operations in trucks owned by the mud companies. (b) Supply stores of all nature and description that deliver supplies and make a delivery charge, (c) Grocery and retail stores that sell their products and deliver the same in their own trucks and make a charge therefor, (d) Laundry and dry cleaning establishments which provide services at one price and charge the customer for delivery service.